The radicalism of SCOTUS

"Mitch McConnell has promised that if Republicans regain control of the Senate in 2022, that he will not let Biden put any more Supreme Court justices on the bench. He would keep seats open for up to 6 years if he had to. 3/n" — Brynn Tannehill on X, May 9, 2022

"They have created a precedent for overturning precedent," Louise Melling of the American Civil Liberties Union said in an interview Monday. She called the current court "radical" and is stunned that the majority could overturn a case that "is so fundamental to the lives of women and the lives of families."

Melling pointed to the dissent penned by the court's three liberals and said she hoped that one day the court would respect stare decisis again.

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"In the abortion opinion, Justice Samuel Alito provided two pages of footnotes highlighting other cases that have been overturned, in an effort to prove that stare decisis isn't what he called an "inexorable command." And he explained his criteria for overturning precedent."

— Ariane de Vogue, "The Supreme Court just threw the idea of settled law out the window," CNN, June 28, 2022

In 2015 in Obergefell v. Hodges, writes Madiba K. Dennie in The Originalism Trap, the Supreme Court ruled that the Constitution is meant to protect "the right of all persons to enjoy liberty as we learn its meaning." That seemed to be a "game changer," since it would not be necessary to discover the legal history of a certain behavior to demonstrate what courts should do today about it.

"A new door was opened," Dennie writes, "for the public to advance arguments about the constitutional requirements of dignity, equality, and liberty under the Fourteenth Amendment," yielding "interpretative possibilities" based on

"decades of dialogue between advocates and the people they represent, the judiciary, and other actors engaged in explicating interconnected constitutional principles. The rights and freedoms the due process cases upheld—including same-sex and interracial marriage, decriminalized same-sex intimacy, contraception, abortion, privacy and autonomy, and equal dignity—built on each other like blocks in human rights Jenga. But then, originalists pulled the Roe v. Wade block out. Their legitimation of the dissenting arguments in prior abortion and gay rights cases has destabilized the whole human rights tower, and the country is left wondering which block will be next to fall." (Chapter 2: Stealing Our Liberties)

I wrote about her book for Medium.

The Constitution makes ONE simple demand of officeholders. Like instructing Adam & Eve to lay off the fruit, the Framers said, "you may want a fancy European title but the nation's integrity demands you refuse." Alito just ignored the Constitution's command.

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— Joe Patrice (@joepatrice.bsky.social) October 31, 2024 at 1:28 PM

This is the funniest thing for a Supreme Court justice to get impeached for, and so absolutely perfect for Samuel Alito. Say what you will about his opinions, but he has always been likely to go down for accepting a bejeweled scepter from the most racist living member of the Bourbon dynasty.

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— David_j_roth (@davidjroth.bsky.social) November 1, 2024 at 12:02 PM

"...the “Purcell principle”...begins from the quite reasonable idea that courts should refrain from changing the rules of elections, including district lines, right before an election takes place. But in practice, Purcell has become an infinitely flexible tool that the conservatives apply or ignore at their whim. If a change in the rules will benefit Democrats, Purcell is deployed to strike it down, no matter how far away the next election actually is. If the change will benefit Republicans, no matter how close the election is, Purcell is placed gently back into its scabbard, and the changes are allowed.
...the court has created a set of principles and tools meant for itself to use to achieve the policy goals it wants. Purcell is one; the end of “Chevron deference,” which previously said that federal agencies can decide how to apply statues, is another; the “major questions doctrine,” which they invented out of whole cloth, is a third. The mother of them all is “originalism,” which states that any law’s constitutionality is determined by whether a right-wing justice’s law clerk can find a quote from the Federalist Papers or a bill considered in the Virginia House of Burgesses in 1750 that seems to support whatever outcome the conservatives want.
The six conservatives have deployed these tools again and again to advance the interests of the Republican Party and their own policy preferences. Precedents have no bearing, the plain text of statutes has no meaning, and their own authority has no limit. They are out of control, and their reign of judicial terror must come to an end."
— Paul Waldman, Democrats Need to Treat the Supreme Court Like the Villain It Is: The Court is out of control, and we'll never see reform unless we build the case for it. Starting now. Dec 5, 2025